Alfredo DeLaCruz v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 12, 2021
• Docket: 01-20-00150-CR
• Status: Published

Opinion

Opinion issued August 12, 2021

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00150-CR ——————————— ALFREDO DE LA CRUZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court Harris County, Texas Trial Court Case No. 1503082

MEMORANDUM OPINION

Appellant, Alfredo de la Cruz, was charged with the offense of continuous

sexual abuse of a child. A jury convicted him of the lesser-included offense of

aggravated sexual assault of a child, and the trial court assessed his punishment at

18 years’ imprisonment. In two issues, appellant argues that (1) the evidence supporting his conviction is legally insufficient in light of the complainant’s

recantation of the allegations at trial, and (2) his Fifth and Fourteenth Amendment

rights were violated when the State used “perjured testimony” from the complainant

at trial.

We affirm.

Background

In 2015, when the complainant N.D.L.C. (“Nadia”)1 was eleven years old and

in sixth grade, she told her school counselor that her stepfather, appellant, was raping

her. Appellant was subsequently charged with continuous sexual assault of a child.

At his trial, the State presented evidence of the sexual assaults through an outcry

witness, Claudia Gonzalez. Gonzalez testified that she was a forensic interviewer at

the Child Assessment Center, who interviewed Nadia after the school counselor

reported the abuse to child protective services.

Gonzalez testified that Nadia was eleven years old at the time of the interview

in which she disclosed specific incidents of sexual abuse that began when she was

nine and continued until the time of the interview. Nadia reported abuse, including

fondling, use of a vibrator, four to five instances of mouth-to-vagina contact, and

four to five instances of penetration of her vagina or anus by appellant’s penis

beginning when she was ten years old.

1 We use a pseudonym to protect the complainant’s identity and for ease of reference. 2 Gonzalez also testified about the “stages of disclosure” that children who have

been sexually assaulted commonly experience. The first stage is denial, in which a

child “says nothing has happened.” This is followed by tentative and then active

disclosure, in which the child will provide details regarding the alleged abuse.

Gonzalez stated that the fourth stage is “a recant,” which means “although they

already told that they were victims, they take it back. They say, no, that actually did

not happen.” The final stage is then reaffirming the details of the abuse. Gonzalez

testified that a child might recant for numerous reasons:

If any threats are made, if a child has some sort of learning disability or developmental disabilities or just a change in their environment. Taking—telling someone about abuse causes an entire impact on the family, whether it’s financial, whether it’s day care, school, or having to move. Any of these factors can cause a child to say take it back. They just want everything to go away.

Rachel Fletcher, a sexual assault nurse examiner with Baylor College of

Medicine, also testified concerning her medical report from Nadia’s physical

examination. According to that report, Nadia described multiple instances of sexual

contact between herself and appellant that had occurred since she was nine years old,

including an instance the day before the examination in which she claimed appellant

penetrated her anus while wearing a condom. Fletcher testified that she found no

physical evidence of abuse in her examination, but she also testified that “in 97 [to]

99 percent of the [sexual abuse] cases there is no physical injury.”

3 Nadia herself testified at trial. At the time of trial, Nadia was sixteen years

old. She recanted her previous allegations against appellant. She testified that she

invented the accusation of rape against him after she was confronted by her school

counselor about cutting herself. Nadia stated that she was afraid her mother would

“feel like she hadn’t been paying attention to me,” and therefore “made up

something, that was my dad raping me.” She claims to have made up the accusations

to “get [her father] out of the house,” as she disliked the strict household restrictions

he imposed and felt that he showed favoritism to her little sister.

During her cross-examination, Nadia categorically denied any wrongdoing by

appellant. She expressly denied that he touched her breasts or buttocks, and she

denied ever being alone in the same room with him. Nadia testified that she could

not recall any specific comments relating to the sexual abuse allegations she made

during the investigative process, including during her interview with the Child

Assessment Center, examination at the hospital, conversations with her mother, or

therapy sessions. Regarding her statements at the Child Assessment Center, hospital,

and therapy sessions, Nadia recalled her general allegations, stating, “I remember

saying that he touched me. That’s all I remember.”

Nadia testified that she attempted to recant her outcry to prosecutors prior to

the trial. She acknowledged that, when she initially sought to recant her allegations

at the pretrial meetings, she ultimately ended up reaffirming her initial claims of

4 sexual abuse. Nadia explained that, during a meeting with a prosecutor at the district

attorney’s office more than a year before trial, she initially claimed to have lied about

her allegations but later admitted to the prosecutor that her idea to lie at trial came

from a television show. Nadia also testified that she told the prosecuting attorney

that her allegations were false weeks before the trial, but she also testified to

reaffirming her claims of abuse at that very same meeting. To account for the

discrepancies between her claims, Nadia stated that any of her previous statements

alleging sexual abuse to prosecuting attorneys were untrue and resulted from the fact

that she “felt . . . pressure to say that [her father sexually abused her].” Specifically,

she claimed to have been scared by the power of the attorneys, noting that the

prosecuting attorney “[talks] with a very strong voice.”

Nadia’s mother, C.S., likewise testified at trial that she did not believe Nadia’s

accusations of sexual abuse and did not discuss the details of the accusation with her

daughter. Notes from Nadia’s therapy sessions indicate that her mother prematurely

ended the sessions on the premise that Nadia “was fine,” but her mother rejected that

characterization at trial. Nadia’s mother testified that “life is harder without

[appellant],” and she would “like all of this to go away so that life could get back to

normal.”

The State questioned Nadia’s mother about a phone call appellant made to her

on Nadia’s first day of testimony at trial. She testified that both she and Nadia

5 listened during the phone call, in which appellant provided some direction for

Nadia’s further testimony to occur on the following day. In the call, appellant said

that he “was hoping that [Nadia] would say she loves me very much, that I’m needed

in the house and everything.” He encouraged that Nadia’s testimony needed to be

“firmed up, relaxed, no, no, never ever, no, no” when asked about potential abuse.

Officer A. De La Torre also testified about his investigation into the abuse

allegations. Officer De La Torre conducted a voluntary interview with appellant in

which appellant admitted touching Nadia’s breasts over her clothes, but he

repeatedly denied other allegations of sexual penetration. Appellant insinuated in his

interview that he touched Nadia as a result of playing with her and grabbing her

while he was drunk. When Officer De La Torres asked whether appellant had

touched Nadia’s vagina, appellant stated, “No. Like I said, I don’t know. No. That

was like—I mean, I wanted to touch her, yes.” Appellant also stated that when he

was drunk, he “was somewhat mad” and “tried to touch her. I mean, I wanted to

touch her and all that. But I did.”

Appellant’s therapist, T. Espinoza, testified concerning her time conducting

therapy sessions with him as recommended by child protective services. While

appellant initially denied committing any offense during group therapy sessions,

after four months, he eventually “began to accept responsibility and share it with the

group that he had touched [his daughter].” Espinoza testified that appellant only

6 admitted to touching Nadia’s buttocks and nothing else. At one therapy session,

appellant wrote an apology letter to Nadia, in which “he explained . . . that he was

angry at his wife on the night that he touched [Nadia].”

The jury found appellant guilty of the lesser-included offense of aggravated

sexual assault. The trial court assessed appellant’s punishment at 18 years’

imprisonment. This appeal followed.

Sufficiency of the Evidence

In his first issue, appellant challenges the sufficiency of the evidence to

support his conviction.

A. Standard of Review

When reviewing the sufficiency of the evidence, we view the evidence in the

light most favorable to the verdict and determine whether, based on the evidence and

reasonable inferences therefrom, a rational juror could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). The

evidence may be circumstantial or direct, and juries may draw multiple reasonable

inferences from the evidence presented at trial. Hooper v. State, 214 S.W.3d 9, 14–

15 (Tex. Crim. App. 2007). “The jury is the sole judge of the credibility of witnesses

and the weight to be given to their testimonies, and the reviewing court must not

usurp this role by substituting its own judgment for that of the jury.” Queeman, 520

7 S.W.3d at 622. Thus, “the jury can believe all, some, or none of a witness’s

testimony.” Metcalf v. State, 597 S.W.3d 847, 855 (Tex. Crim. App. 2020). We

presume that the jury resolved any conflicting inferences in favor of the verdict, and

we defer to that determination. Id. at 855–56.

A person commits the offense of aggravated sexual assault of a child if the

person intentionally or knowingly causes the penetration of the anus or sexual organ

of a child under the age of fourteen, by any means. See TEX. PENAL CODE

§§ 22.021(a)(1)(B)(i), (a)(2)(B).

B. Analysis

Appellant asserts that the evidence was insufficient to support his conviction

for aggravated sexual assault of child because Nadia denied in her trial testimony

that he had committed any acts of sexual abuse against her. Appellant points to

numerous aspects of Nadia’s testimony and other evidence presented at trial to

support his argument that the jury’s verdict here was not rational, including: Nadia’s

testimony that she lied about the abuse in order to remove appellant from the home

and to divert attention from her own self-harming behaviors; the State’s knowledge

in advance of trial that Nadia would recant the allegations against appellant; Nadia’s

delay in reporting the abuse; the lack of medical evidence or serology supporting the

claim of sexual abuse; and the lack of eyewitnesses.

8 We observe, however, that appellant’s arguments on this point ignore

significant portions of the evidence presented by the State. The State presented the

testimony of the forensic interviewer, Gonzalez, who stated that Nadia made an

outcry of abuse and disclosed numerous incidents in which appellant penetrated her

vagina or anus with his sexual organ. See Jones v. State, 428 S.W.3d 163, 169 (Tex.

App.—Houston [1st Dist.] 2014, no pet.) (“[A] child victim’s outcry statement alone

can be sufficient to support a sexual abuse conviction.”). The nurse examiner,

Fletcher, likewise testified that Nadia disclosed incidents of penetration by appellant.

Fletcher further explained that in the vast majority of cases, there are no physical

signs of sexual abuse. The State also presented a record of appellant’s interview with

Officer De La Torre and therapy notes from appellant’s treatment with Espinoza.

Appellant denied the allegations that he penetrated Nadia, but he acknowledged

touching her breasts and buttocks while he was drunk and stated that he wanted to

touch her.

In addition to this testimony, the State presented evidence putting Nadia’s

recantation at trial into context. Nadia’s mother testified that she never believed the

allegations that Nadia made against appellant, that life had been harder since

appellant was forced to leave the home, and that she wanted “all of this to go away

so that life could get back to normal.” Gonzalez testified that it was not uncommon

for children who had been sexually assaulted to recant their allegations once they

9 realize all of the consequences that arise from exposing abuse. The State also

presented evidence that appellant called Nadia’s mother from jail, spoke to Nadia

and her mother about Nadia’s testimony at trial, and coached Nadia regarding her

testimony for the next day. Appellant told Nadia and her mother that he “was hoping

that [Nadia] would say she loves me very much, that I’m needed in the house and

everything.” He encouraged Nadia that her testimony needed to be “firmed up,

relaxed, no, no, never ever, no, no” when asked about potential abuse.

Nadia’s own testimony provided some evidence regarding her reasons for

recanting at trial. Nadia testified that she attempted to recant her outcry to

prosecutors prior to the trial, but she ultimately ended up reaffirming her claims of

sexual abuse. In that meeting, she admitted to one of the prosecutors that she got the

idea to recant her testimony from a television show.

Considering all the evidence, as we must, we conclude that a rational jury

could have found appellant guilty of aggravated sexual assault of Nadia. See

Jackson, 443 U.S. at 319. The State presented some conflicting evidence—the

outcry that Nadia made regarding the abuse contrasted with her recantation at trial.

It was the jury’s responsibility as the factfinder to resolve any conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts. See id.; Queeman, 520 S.W.3d at 622. We may not re-evaluate the

evidence’s weight and credibility, nor may we substitute our judgment for the jury’s.

10 Queeman, 520 S.W.3d at 622. The jury was free to believe Nadia’s outcry to

Gonzalez and the additional evidence putting her recantation at trial into context

over her trial testimony denying the allegations against appellant. See Chambers v.

State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (stating trier of fact can observe

complainant’s demeanor, is entitled to reconcile any conflicts in testimony, and can

disbelieve witness’s recantation of prior testimony); Jackson v. State, 110 S.W.3d

626, 631 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (“[A] criminal

conviction, which requires proof beyond a reasonable doubt, may rest on hearsay

despite the lack of the complainant’s testimony or even the complainant’s

recantation.”).

We overrule appellant’s first issue.

Testimony

In his second issue, appellant argues that the State “knowingly used perjured

testimony in violation of the Fifth and Fourteenth Amendments of the United States

Constitution,” thereby impacting his due-process rights.

The Due Process Clause of Fourteenth Amendment can be violated when the

State uses materially false testimony to obtain a conviction. Ex parte Lalonde, 570

S.W.3d 716, 722 (Tex. Crim. App. 2019). “The violation can be caused by false

testimony elicited by the State or by the State’s failure to correct testimony it knows

11 to be false.” Id. There is no requirement that the offending testimony be criminally

perjurious; rather, “[i]t is sufficient if the witness’s testimony gives the trier of fact

a false impression.” Ex parte Ghahremani, 332 S.W.3d 470, 477 (Tex. Crim. App.

2011). The rules against use of “perjured” testimony to obtain a conviction “are not

aimed at preventing the crime of perjury—which is punishable in its own right—but

are designed to ensure that the defendant is convicted and sentenced on truthful

testimony.” Id. at 477–78.

Accordingly, under this standard, “[w]e review the record to determine if the

State ‘used’ the testimony, whether the testimony was ‘false,’ whether the testimony

was ‘knowingly used,’ and if these questions are affirmatively answered, whether

there is a reasonable likelihood that the false testimony could have affected the

judgment of the jury.” Espinosa v. State, 328 S.W.3d 32, 38 (Tex. App.—Corpus

Christi-Edinburg 2010, pet. ref’d) (quoting Ramirez v. State, 96 S.W.3d 386, 394–

95 (Tex. App.—Austin 2002, pet. ref’d)).

Appellant argues in his brief on appeal that the State “was informed by

[Nadia] that she had falsely accused appellant of sexual abuse and repudiated

statements made to the employees of the Child Assessment Center, Child Protective

Services, and her school that she stated were lies.” He argues that the State called

Nadia to testify at trial “even thought the prosecutor was aware she would deny

12 appellant had abused her and that she lied during the pretrial investigation of the

case,” while at the same time, the State “introduced testimony of witnesses, their

reports, and records of Texas Children’s Hospital and the Child Assessment Center”

that “contained statements [Nadia] made but later repudiated as lies.”

Thus, appellant points to contradictions or inconsistencies in the State’s

evidence to support his contention that it knowingly used perjured testimony to

procure his conviction. We observe, however, that “[w]hether evidence is false turns

on whether the jury was left with a misleading or false impression after considering

the evidence in its entirety.” Ex parte Chaney, 563 S.W.3d 239, 263 (Tex. Crim.

App. 2018). Looking at the entirety of the evidence presented by the State, as set out

above, we cannot say that the jury was left with a misleading or false impression.

See id.; Ex parte Ghahremani, 332 S.W.3d at 477. The State presented evidence

regarding Nadia’s initial outcry of abuse, her subsequent attempt to recant to the

prosecutors that resulted in her reaffirming her allegations before trial, the pressures

that she faced from her mother and appellant, and her testimony at trial recanting her

initial claims. See Haywood v. State, 507 S.W.2d 756, 760 (Tex. Crim. App. 1974)

(rejecting appellant’s argument that police officer’s inconsistent testimony

constituted knowing use of false testimony by State and observing that “[t]he

credibility of the witness was an issue to be determined by the jury”); see also

McLemore v. State, No. 05-16-00378-CR, 2017 WL 1360227, at *2 (Tex. App.—

13 Dallas Apr. 12, 2017, pet. ref’d) (mem. op., not designated for publication) (holding

that use of inconsistent testimony does not necessarily establish that State knowingly

used perjured testimony).

The jury was thus presented with the full picture of the evidence against

appellant, and it was charged with determining which testimony it found truthful.

See Ex parte Ghahremani, 332 S.W.3d at 477–78 (stating that purpose of rules

against knowing use of perjured testimony was to ensure that defendant is convicted

and sentenced on truthful testimony).

We overrule appellant’s second issue.

Conclusion

We affirm the judgment of the trial court.

Richard Hightower Justice

Panel consists of Justices Kelly, Landau, and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).